- Consolidated Laws - Domestic Relations
ARTICLE 13
PROVISIONS APPLICABLE TO MORE THAN ONE TYPE OF
MATRIMONIAL ACTION
Section 230. Required residence of parties.
231. Residence of married persons.
232. Notice of nature of matrimonial action; proof of service.
233. Sequestration of defendant`s property in action for
divorce, separation or annulment where defendant cannot
be personally served.
234. Title to or occupancy and possession of property.
235. Information as to details of matrimonial actions or
proceedings.
236. Special controlling provisions; prior actions or
proceedings; new actions or proceedings.
237. Counsel fees and expenses.
238. Expenses in enforcement proceedings.
239. Stay in divorce or separation action on default of
payment.
240. Custody and child support; orders of protection.
240-a. Judgment or decree; additional provision.
240-b. Order of support by parent.
240-c. Review and cost of living adjustment of child support
orders.
241. Interference with or withholding of visitation rights;
alimony or maintenance suspension.
243. Security for payments by defendant in action for divorce,
separation or annulment; sequestration.
244. Enforcement by execution of judgment or order in action
for divorce, separation or annulment.
244-a. Enforcement of arrears which accrue during pendency of an
enforcement proceeding.
244-b. Child support proceedings and enforcement of arrears;
suspension of driving privileges.
244-c. Child support proceedings and enforcement of arrears;
suspensions of state professional, occupational and
business licenses.
244-d. Child support proceedings and enforcement of arrears;
suspension of recreational license.
245. Enforcement by contempt proceedings of judgment or order
in action for divorce, separation or annulment.
246. Persons financially unable to comply with orders or
judgments directing the payment of alimony.
247. Alimony or maintenance payments suspended during
confinement in prison.
248. Modification of judgment or order in action for divorce
or annulment.
249. Trial preferences in matrimonial actions.
251. Filing of order in family court.
252. Effect of pendency of action for divorce, separation or
annulment on petition for order of protection.
253. Removal of barriers to remarriage.
254. Confidentiality.
S 230. Required residence of parties. An action to annul a marriage,
or to declare the nullity of a void marriage, or for divorce or
separation may be maintained only when:
1. The parties were married in the state and either party is a
resident thereof when the action is commenced and has been a resident
for a continuous period of one year immediately preceding, or
2. The parties have resided in this state as husband and wife and
either party is a resident thereof when the action is commenced and has
been a resident for a continuous period of one year immediately
preceding, or
3. The cause occurred in the state and either party has been a
resident thereof for a continuous period of at least one year
immediately preceding the commencement of the action, or
4. The cause occurred in the state and both parties are residents
thereof at the time of the commencement of the action, or
5. Either party has been a resident of the state for a continuous
period of at least two years immediately preceding the commencement of
the action.
S 231. Residence of married persons. If a married person dwells within
the state when he or she commences an action against his or her spouse
for divorce, annulment or separation, such person is deemed a resident
thereof, although his or her spouse resides elsewhere.
S 232. Notice of nature of matrimonial action; proof of service. a. In
an action to annul a marriage or for divorce or for separation, if the
complaint is not personally served with the summons, the summons shall
have legibly written or printed upon the face thereof: "Action to annul
a marriage", "Action to declare the nullity of a void marriage", "Action
for a divorce", or "Action for a separation", as the case may be, and
shall specify the nature of any ancillary relief demanded. A judgment
shall not be rendered in favor of the plaintiff upon the defendant`s
default in appearing or pleading, unless either (1) the summons and a
copy of the complaint were personally delivered to the defendant; or (2)
the copy of the summons (a) personally delivered to the defendant, or
(b) served on the defendant pursuant to an order directing the method of
service of the summons in accordance with the provisions of section
three hundred eight or three hundred fifteen of the civil practice law
and rules, shall contain such notice.
b. An affidavit or certificate proving service shall state
affirmatively in the body thereof that the required notice was written
or printed on the face of the copy of the summons delivered to the
defendant and what knowledge the affiant or officer who executed the
certificate had that he was the defendant named and how he acquired such
knowledge. The court may require the affiant or officer who executed the
affidavit or certificate to appear in court and be examined in respect
thereto.
S 233. Sequestration of defendant`s property in action for divorce,
separation or annulment where defendant cannot be personally served.
Where in an action for divorce, separation, annulment or declaration of
nullity of a void marriage it appears to the court that the defendant is
not within the state, or cannot be found therein, or is concealing
himself or herself therein, so that process cannot be personally served
upon the defendant, the court may at any time and from time to time make
any order or orders without notice directing the sequestration of his or
her property, both real and personal and whether tangible or intangible,
within the state, and may appoint a receiver thereof, or by injunction
or otherwise take the same into its possession and control. The property
thus sequestered and the income therefrom may be applied in whole or in
part and from time to time, under the direction of the court and as
justice may require, to the payment of such sum or sums as the court may
deem it proper to award, by order or judgment as the case may be, and
during the pendency of the action or at the termination thereof, for the
education or maintenance of any of the children of a marriage, or for
the support of a spouse, or for his or her expenses in bringing and
carrying on said action and the proceedings incidental thereto or
connected therewith; and if the rents and profits of the real estate,
together with the other property so sequestered, be insufficient to pay
the sums of money required, the court, upon such terms and conditions as
it may prescribe, may direct the mortgage or sale of sufficient of said
real estate to pay such sums. The court may appoint the plaintiff spouse
receiver or sequestrator in such cases. The court may authorize such
spouse to use and occupy, free of any liability for rent or use and
occupation or otherwise, any house or other suitable property of the
defendant spouse as a dwelling for himself or herself with or without
the children of the marriage, and may likewise turn over to the
plaintiff spouse for the use of such spouse with or without the children
of the marriage any chattel or chattels of the defendant spouse. The
relief herein provided for is in addition to any and every other remedy
to which a spouse may be entitled under the law.
S 234. Title to or occupancy and possession of property. In any action
for divorce, for a separation, for an annulment or to declare the
nullity of a void marriage, the court may (1) determine any question as
to the title to property arising between the parties, and (2) make such
direction, between the parties, concerning the possession of property,
as in the court`s discretion justice requires having regard to the
circumstances of the case and of the respective parties. Such direction
may be made in the final judgment, or by one or more orders from time to
time before or subsequent to final judgment, or by both such order or
orders and final judgment. Where the title to real property is affected,
a copy of such judgment, order or decree, duly certified by the clerk of
the court wherein said judgement was rendered, shall be recorded in the
office of the recording officer of the county in which such property is
situated, as provided by section two hundred ninety-seven-b of the real
property law.
S 235. Information as to details of matrimonial actions or
proceedings. 1. An officer of the court with whom the proceedings in a
matrimonial action or a written agreement of separation or an action or
proceeding for custody, visitation or maintenance of a child are filed,
or before whom the testimony is taken, or his clerk, either before or
after the termination of the suit, shall not permit a copy of any of the
pleadings, affidavits, findings of fact, conclusions of law, judgment of
dissolution, written agreement of separation or memorandum thereof, or
testimony, or any examination or perusal thereof, to be taken by any
other person than a party, or the attorney or counsel of a party, except
by order of the court.
2. If the evidence on the trial of such an action or proceeding be
such that public interest requires that the examination of the witnesses
should not be public, the court or referee may exclude all persons from
the room except the parties to the action and their counsel, and in such
case may order the evidence, when filed with the clerk, sealed up, to be
exhibited only to the parties to the action or proceeding or someone
interested, on order of the court.
3. Upon the application of any person to the county clerk or other
officer in charge of public records within a county for evidence of the
disposition, judgment or order with respect to a matrimonial action, the
clerk or other such officer shall issue a "certificate of disposition",
duly certifying the nature and effect of such disposition, judgment or
order and shall in no manner evidence the subject matter of the
pleadings, testimony, findings of fact, conclusions of law or judgment
of dissolution derived in any such action.
4. Any county, city, town or village clerk or other municipal official
issuing marriage licenses shall be required to accept, as evidence of
dissolution of marriage, such "certificate of disposition" in lieu of a
complete copy of the findings of fact, conclusions of law and judgment
of dissolution.
5. The limitations of subdivisions one, two and three of this section
in relation to confidentiality shall cease to apply one hundred years
after date of filing, and such records shall thereupon be public records
available to public inspection.
S 236. Special controlling provisions; prior actions or proceedings;
new actions or proceedings. Except as otherwise expressly provided in
this section, the provisions of part A shall be controlling with respect
to any action or proceeding commenced prior to the date on which the
provisions of this section as amended become effective and the
provisions of part B shall be controlling with respect to any action or
proceeding commenced on or after such effective date. Any reference to
this section or the provisions hereof in any action, proceeding,
judgment, order, rule or agreement shall be deemed and construed to
refer to either the provisions of part A or part B respectively and
exclusively, determined as provided in this paragraph any inconsistent
provision of law notwithstanding.
PART A
PRIOR ACTIONS OR PROCEEDINGS
Alimony, temporary and permanent. 1. Alimony. In any action or
proceeding brought (1) during the lifetime of both parties to the
marriage to annul a marriage or declare the nullity of a void marriage,
or (2) for a separation, or (3) for a divorce, the court may direct
either spouse to provide suitably for the support of the other as, in
the court`s discretion, justice requires, having regard to the length of
time of the marriage, the ability of each spouse to be self supporting,
the circumstances of the case and of the respective parties. Such
direction may require the payment of a sum or sums of money either
directly to either spouse or to third persons for real and personal
property and services furnished to either spouse, or for the rental of
or mortgage amortization or interest payments, insurance, taxes, repairs
or other carrying charges on premises occupied by either spouse, or for
both payments to either spouse and to such third persons. Such direction
shall be effective as of the date of the application therefor, and any
retroactive amount of alimony due shall be paid in one sum or periodic
sums, as the court shall direct, taking into account any amount of
temporary alimony which has been paid. Such direction may be made in the
final judgment in such action or proceeding, or by one or more orders
from time to time before or subsequent to final judgment, or by both
such order or orders and the final judgment. Such direction may be made
notwithstanding that the parties continue to reside in the same abode
and notwithstanding that the court refuses to grant the relief requested
by either spouse (1) by reason of a finding by the court that a divorce,
annulment or judgment declaring the marriage a nullity had previously
been granted to either spouse in an action in which jurisdiction over
the person of the other spouse was not obtained, or (2) by reason of the
misconduct of the other spouse, unless such misconduct would itself
constitute grounds for separation or divorce, or (3) by reason of a
failure of proof of the grounds of either spouse`s action or
counterclaim. Any order or judgment made as in this section provided may
combine in one lump sum any amount payable to either spouse under this
section with any amount payable to either spouse under section two
hundred forty of this chapter. Upon the application of either spouse,
upon such notice to the other party and given in such manner as the
court shall direct, the court may annul or modify any such direction,
whether made by order or by final judgment, or in case no such direction
shall have been made in the final judgment may, with respect to any
judgment of annulment or declaring the nullity of a void marriage
rendered on or after September first, nineteen hundred forty or any
judgment of separation or divorce whenever rendered, amend the judgment
by inserting such direction. Subject to the provisions of section two
hundred forty-four of this chapter, no such modification or annulment
shall reduce or annul arrears accrued prior to the making of such
application unless the defaulting party shows good cause for failure to
make application for relief from the judgment or order directing such
payment prior to the accrual of such arrears. Such modification may
increase such support nunc pro tunc based on newly discovered evidence.
2. Compulsory financial disclosure. In all matrimonial actions and
proceedings commenced on or after September first, nineteen hundred
seventy-five in supreme court in which alimony, maintenance or support
is in issue and all support proceedings in family court, there shall be
compulsory disclosure by both parties of their respective financial
states. No showing of special circumstances shall be required before
such disclosure is ordered. A sworn statement of net worth shall be
provided upon receipt of a notice in writing demanding the same, within
twenty days after the receipt thereof. In the event said statement is
not demanded, it shall be filed by each party, within ten days after
joinder of issue, in the court in which the procedure is pending. As
used in this section, the term net worth shall mean the amount by which
total assets including income exceed total liabilities including fixed
financial obligations. It shall include all income and assets of
whatsoever kind and nature and wherever situated and shall include a
list of all assets transferred in any manner during the preceding three
years, or the length of the marriage, whichever is shorter; provided,
however that transfers in the routine course of business which resulted
in an exchange of assets of substantially equivalent value need not be
specifically disclosed where such assets are otherwise identified in the
statement of net worth. Noncompliance shall be punishable by any or all
of the penalties prescribed in section thirty-one hundred twenty-six of
the civil practice law and rules, in examination before or during trial.
PART B
NEW ACTIONS OR PROCEEDINGS
Maintenance and distributive award. 1. Definitions. Whenever used in
this part, the following terms shall have the respective meanings
hereinafter set forth or indicated:
a. The term "maintenance" shall mean payments provided for in a valid
agreement between the parties or awarded by the court in accordance with
the provisions of subdivision six of this part, to be paid at fixed
intervals for a definite or indefinite period of time, but an award of
maintenance shall terminate upon the death of either party or upon the
recipient`s valid or invalid marriage, or upon modification pursuant to
paragraph (b) of subdivision nine of section two hundred thirty-six of
this part or section two hundred forty-eight of this chapter.
b. The term "distributive award" shall mean payments provided for in a
valid agreement between the parties or awarded by the court, in lieu of
or to supplement, facilitate or effectuate the division or distribution
of property where authorized in a matrimonial action, and payable either
in a lump sum or over a period of time in fixed amounts. Distributive
awards shall not include payments which are treated as ordinary income
to the recipient under the provisions of the United States Internal
Revenue Code.
c. The term "marital property" shall mean all property acquired by
either or both spouses during the marriage and before the execution of a
separation agreement or the commencement of a matrimonial action,
regardless of the form in which title is held, except as otherwise
provided in agreement pursuant to subdivision three of this part.
Marital property shall not include separate property as hereinafter
defined.
d. The term separate property shall mean:
(1) property acquired before marriage or property acquired by bequest,
devise, or descent, or gift from a party other than the spouse;
(2) compensation for personal injuries;
(3) property acquired in exchange for or the increase in value of
separate property, except to the extent that such appreciation is due in
part to the contributions or efforts of the other spouse;
(4) property described as separate property by written agreement of
the parties pursuant to subdivision three of this part.
e. The term "custodial parent" shall mean a parent to whom custody of
a child or children is granted by a valid agreement between the parties
or by an order or decree of a court.
f. The term "child support" shall mean a sum paid pursuant to court
order or decree by either or both parents or pursuant to a valid
agreement between the parties for care, maintenance and education of any
unemancipated child under the age of twenty-one years.
2. Matrimonial actions. Except as provided in subdivision five of this
part, the provisions of this part shall be applicable to actions for an
annulment or dissolution of a marriage, for a divorce, for a separation,
for a declaration of the nullity of a void marriage, for a declaration
of the validity or nullity of a foreign judgment of divorce, for a
declaration of the validity or nullity of a marriage, and to proceedings
to obtain maintenance or a distribution of marital property following a
foreign judgment of divorce, commenced on and after the effective date
of this part. Any application which seeks a modification of a judgment,
order or decree made in an action commenced prior to the effective date
of this part shall be heard and determined in accordance with the
provisions of part A of this section.
3. Agreement of the parties. An agreement by the parties, made before
or during the marriage, shall be valid and enforceable in a matrimonial
action if such agreement is in writing, subscribed by the parties, and
acknowledged or proven in the manner required to entitle a deed to be
recorded. Such an agreement may include (1) a contract to make a
testamentary provision of any kind, or a waiver of any right to elect
against the provisions of a will; (2) provision for the ownership,
division or distribution of separate and marital property; (3) provision
for the amount and duration of maintenance or other terms and conditions
of the marriage relationship, subject to the provisions of section 5-311
of the general obligations law, and provided that such terms were fair
and reasonable at the time of the making of the agreement and are not
unconscionable at the time of entry of final judgment; and (4) provision
for the custody, care, education and maintenance of any child of the
parties, subject to the provisions of section two hundred forty of this
chapter. Nothing in this subdivision shall be deemed to affect the
validity of any agreement made prior to the effective date of this
subdivision.
4. Compulsory financial disclosure. a. In all matrimonial actions and
proceedings in which alimony, maintenance or support is in issue, there
shall be compulsory disclosure by both parties of their respective
financial states. No showing of special circumstances shall be required
before such disclosure is ordered. A sworn statement of net worth shall
be provided upon receipt of a notice in writing demanding the same,
within twenty days after the receipt thereof. In the event said
statement is not demanded, it shall be filed with the clerk of the court
by each party, within ten days after joinder of issue, in the court in
which the proceeding is pending. As used in this part, the term "net
worth" shall mean the amount by which total assets including income
exceed total liabilities including fixed financial obligations. It shall
include all income and assets of whatsoever kind and nature and wherever
situated and shall include a list of all assets transferred in any
manner during the preceding three years, or the length of the marriage,
whichever is shorter; provided, however that transfers in the routine
course of business which resulted in an exchange of assets of
substantially equivalent value need not be specifically disclosed where
such assets are otherwise identified in the statement of net worth. All
such sworn statements of net worth shall be accompanied by a current and
representative paycheck stub and the most recently filed state and
federal income tax returns including a copy of the W-2(s) wage and tax
statement(s) submitted with the returns. In addition, both parties shall
provide information relating to any and all group health plans available
to them for the provision of care or other medical benefits by insurance
or otherwise for the benefit of the child or children for whom support
is sought, including all such information as may be required to be
included in a qualified medical child support order as defined in
section six hundred nine of the employee retirement income security act
of 1974 (29 USC 1169) including, but not limited to: (i) the name and
last known mailing address of each party and of each dependent to be
covered by the order; (ii) the identification and a description of each
group health plan available for the benefit or coverage of the
disclosing party and the child or children for whom support is sought;
(iii) a detailed description of the type of coverage available from each
group health plan for the potential benefit of each such dependent; (iv)
the identification of the plan administrator for each such group health
plan and the address of such administrator; (v) the identification
numbers for each such group health plan; and (vi) such other information
as may be required by the court. Noncompliance shall be punishable by
any or all of the penalties prescribed in section thirty-one hundred
twenty-six of the civil practice law and rules, in examination before or
during trial.
b. As soon as practicable after a matrimonial action has been
commenced, the court shall set the date or dates the parties shall use
for the valuation of each asset. The valuation date or dates may be
anytime from the date of commencement of the action to the date of
trial.
5. Disposition of property in certain matrimonial actions. a. Except
where the parties have provided in an agreement for the disposition of
their property pursuant to subdivision three of this part, the court, in
an action wherein all or part of the relief granted is divorce, or the
dissolution, annulment or declaration of the nullity of a marriage, and
in proceedings to obtain a distribution of marital property following a
foreign judgment of divorce, shall determine the respective rights of
the parties in their separate or marital property, and shall provide for
the disposition thereof in the final judgment.
b. Separate property shall remain such.
c. Marital property shall be distributed equitably between the
parties, considering the circumstances of the case and of the respective
parties.
d. In determining an equitable disposition of property under paragraph
c, the court shall consider:
(1) the income and property of each party at the time of marriage, and
at the time of the commencement of the action;
(2) the duration of the marriage and the age and health of both
parties;
(3) the need of a custodial parent to occupy or own the marital
residence and to use or own its household effects;
(4) the loss of inheritance and pension rights upon dissolution of the
marriage as of the date of dissolution;
(5) any award of maintenance under subdivision six of this part;
(6) any equitable claim to, interest in, or direct or indirect
contribution made to the acquisition of such marital property by the
party not having title, including joint efforts or expenditures and
contributions and services as a spouse, parent, wage earner and
homemaker, and to the career or career potential of the other party;
(7) the liquid or non-liquid character of all marital property;
(8) the probable future financial circumstances of each party;
(9) the impossibility or difficulty of evaluating any component asset
or any interest in a business, corporation or profession, and the
economic desirability of retaining such asset or interest intact and
free from any claim or interference by the other party;
(10) the tax consequences to each party;
(11) the wasteful dissipation of assets by either spouse;
(12) any transfer or encumbrance made in contemplation of a
matrimonial action without fair consideration;
(13) any other factor which the court shall expressly find to be just
and proper.
e. In any action in which the court shall determine that an equitable
distribution is appropriate but would be impractical or burdensome or
where the distribution of an interest in a business, corporation or
profession would be contrary to law, the court in lieu of such equitable
distribution shall make a distributive award in order to achieve equity
between the parties. The court in its discretion, also may make a
distributive award to supplement, facilitate or effectuate a
distribution of marital property.
f. In addition to the disposition of property as set forth above, the
court may make such order regarding the use and occupancy of the marital
home and its household effects as provided in section two hundred
thirty-four of this chapter, without regard to the form of ownership of
such property.
g. In any decision made pursuant to this subdivision, the court shall
set forth the factors it considered and the reasons for its decision and
such may not be waived by either party or counsel.
h. In any decision made pursuant to this subdivision the court shall,
where appropriate, consider the effect of a barrier to remarriage, as
defined in subdivision six of section two hundred fifty-three of this
article, on the factors enumerated in paragraph d of this subdivision.
6. Maintenance. a. Except where the parties have entered into an
agreement pursuant to subdivision three of this part providing for
maintenance, in any matrimonial action the court may order temporary
maintenance or maintenance in such amount as justice requires, having
regard for the standard of living of the parties established during the
marriage, whether the party in whose favor maintenance is granted lacks
sufficient property and income to provide for his or her reasonable
needs and whether the other party has sufficient property or income to
provide for the reasonable needs of the other and the circumstances of
the case and of the respective parties. Such order shall be effective as
of the date of the application therefor, and any retroactive amount of
maintenance due shall be paid in one sum or periodic sums, as the court
shall direct, taking into account any amount of temporary maintenance
which has been paid. In determining the amount and duration of
maintenance the court shall consider:
(1) the income and property of the respective parties including
marital property distributed pursuant to subdivision five of this part;
(2) the duration of the marriage and the age and health of both
parties;
(3) the present and future earning capacity of both parties;
(4) the ability of the party seeking maintenance to become
self-supporting and, if applicable, the period of time and training
necessary therefor;
(5) reduced or lost lifetime earning capacity of the party seeking
maintenance as a result of having foregone or delayed education,
training, employment, or career opportunities during the marriage;
(6) the presence of children of the marriage in the respective homes
of the parties;
(7) the tax consequences to each party;
(8) contributions and services of the party seeking maintenance as a
spouse, parent, wage earner and homemaker, and to the career or career
potential of the other party;
(9) the wasteful dissipation of marital property by either spouse;
(10) any transfer or encumbrance made in contemplation of a
matrimonial action without fair consideration; and
(11) any other factor which the court shall expressly find to be just
and proper.
b. In any decision made pursuant to this subdivision, the court shall
set forth the factors it considered and the reasons for its decision and
such may not be waived by either party or counsel.
c. The court may award permanent maintenance, but an award of
maintenance shall terminate upon the death of either party or upon the
recipient`s valid or invalid marriage, or upon modification pursuant to
paragraph (b) of subdivision nine of section two hundred thirty-six of
this part or section two hundred forty-eight of this chapter.
d. In any decision made pursuant to this subdivision the court shall,
where appropriate, consider the effect of a barrier to remarriage, as
defined in subdivision six of section two hundred fifty-three of this
article, on the factors enumerated in paragraph a of this subdivision.
7. Child support. a. In any matrimonial action, or in an independent
action for child support, the court as provided in section two hundred
forty of this chapter shall order either or both parents to pay
temporary child support or child support without requiring a showing of
immediate or emergency need. The court shall make an order for temporary
child support notwithstanding that information with respect to income
and assets of either or both parents may be unavailable. Where such
information is available, the court may make an order for temporary
child support pursuant to section two hundred forty of this article.
Such order shall, except as provided for herein, be effective as of the
date of the application therefor, and any retroactive amount of child
support due shall be support arrears/past due support and shall be paid
in one sum or periodic sums, as the court shall direct, taking into
account any amount of temporary child support which has been paid. In
addition, such retroactive child support shall be enforceable in any
manner provided by law including, but not limited to, an execution for
support enforcement pursuant to subdivision (b) of section fifty-two
hundred forty-one of the civil practice law and rules. When a child
receiving support is a public assistance recipient, or the order of
support is being enforced or is to be enforced pursuant to section one
hundred eleven-g of the social services law, the court shall establish
the amount of retroactive child support and notify the parties that such
amount shall be enforced by the support collection unit pursuant to an
execution for support enforcement as provided for in subdivision (b) of
section fifty-two hundred forty-one of the civil practice law and rules,
or in such periodic payments as would have been authorized had such an
execution been issued. In such case, the court shall not direct the
schedule of repayment of retroactive support. The court shall not
consider the misconduct of either party but shall make its award for
child support pursuant to section two hundred forty of this article.
b. Notwithstanding any other provision of law, any written application
or motion to the court for the establishment of a child support
obligation for persons not in receipt of family assistance must contain
either a request for child support enforcement services which would
authorize the collection of the support obligation by the immediate
issuance of an income execution for support enforcement as provided for
by this chapter, completed in the manner specified in section one
hundred eleven-g of the social services law; or a statement that the
applicant has applied for or is in receipt of such services; or a
statement that the applicant knows of the availability of such services,
has declined them at this time and where support enforcement services
pursuant to section one hundred eleven-g of the social services law have
been declined that the applicant understands that an income deduction
order may be issued pursuant to subdivision (c) of section five thousand
two hundred forty-two of the civil practice law and rules without other
child support enforcement services and that payment of an administrative
fee may be required. The court shall provide a copy of any such request
for child support enforcement services to the support collection unit of
the appropriate social services district any time it directs payments to
be made to such support collection unit. Additionally, the copy of any
such request shall be accompanied by the name, address and social
security number of the parties; the date and place of the parties`
marriage; the name and date of birth of the child or children; and the
name and address of the employers and income payors of the party from
whom child support is sought. Unless the party receiving child support
has applied for or is receiving such services, the court shall not
direct such payments to be made to the support collection unit, as
established in section one hundred eleven-h of the social services law.
c. The court shall direct that a copy of any child support or combined
child and spousal support order issued by the court on or after the
first day of October, nineteen hundred ninety-eight, in any proceeding
under this section be provided promptly to the state case registry
established pursuant to subdivision four-a of section one hundred
eleven-b of the social services law.
8. Special relief in matrimonial actions. a. In any matrimonial
action the court may order a party to purchase, maintain or assign a
policy of insurance providing benefits for health and hospital care and
related services for either spouse or children of the marriage not to
exceed such period of time as such party shall be obligated to provide
maintenance, child support or make payments of a distributive award. The
court may also order a party to purchase, maintain or assign a policy of
accident insurance or insurance on the life of either spouse, and to
designate in the case of life insurance, either spouse or children of
the marriage, or in the case of accident insurance, the insured spouse
as irrevocable beneficiaries during a period of time fixed by the court.
The obligation to provide such insurance shall cease upon the
termination of the spouse`s duty to provide maintenance, child support
or a distributive award. A copy of such order shall be served, by
registered mail, on the home office of the insurer specifying the name
and mailing address of the spouse or children, provided that failure to
so serve the insurer shall not affect the validity of the order.
b. In any action where the court has ordered temporary maintenance,
maintenance, distributive award or child support, the court may direct
that a payment be made directly to the other spouse or a third person
for real and personal property and services furnished to the other
spouse, or for the rental or mortgage amortization or interest payments,
insurances, taxes, repairs or other carrying charges on premises
occupied by the other spouse, or for both payments to the other spouse
and to such third persons. Such direction may be made notwithstanding
that the parties continue to reside in the same abode and
notwithstanding that the court refuses to grant the relief requested by
the other spouse.
c. Any order or judgment made as in this section provided may combine
any amount payable to either spouse under this section with any amount
payable to such spouse as child support or under section two hundred
forty of this chapter.
9. Enforcement and modification of orders and judgments in matrimonial
actions. a. All orders or judgments entered in matrimonial actions shall
be enforceable pursuant to section fifty-two hundred forty-one or
fifty-two hundred forty-two of the civil practice law and rules, or in
any other manner provided by law. Orders or judgments for child support,
alimony and maintenance shall also be enforceable pursuant to article
fifty-two of the civil practice law and rules upon a debtor`s default as
such term is defined in paragraph seven of subdivision (a) of section
fifty-two hundred forty-one of the civil practice law and rules. The
establishment of a default shall be subject to the procedures
established for the determination of a mistake of fact for income
executions pursuant to subdivision (e) of section fifty-two hundred
forty-one of the civil practice law and rules. For the purposes of
enforcement of child support orders or combined spousal and child
support orders pursuant to section five thousand two hundred forty-one
of the civil practice law and rules, a "default" shall be deemed to
include amounts arising from retroactive support. The court may, and if
a party shall fail or refuse to pay maintenance, distributive award or
child support the court shall, upon notice and an opportunity to the
defaulting party to be heard, require the party to furnish a surety, or
the sequestering and sale of assets for the purpose of enforcing any
award for maintenance, distributive award or child support and for the
payment of reasonable and necessary attorney`s fees and disbursements.
b. Upon application by either party, the court may annul or modify any
prior order or judgment as to maintenance or child support, upon a
showing of the recipient`s inability to be self-supporting or a
substantial change in circumstance or termination of child support
awarded pursuant to section two hundred forty of this article, including
financial hardship. Where, after the effective date of this part, a
separation agreement remains in force no modification of a prior order
or judgment incorporating the terms of said agreement shall be made as
to maintenance without a showing of extreme hardship on either party, in
which event the judgment or order as modified shall supersede the terms
of the prior agreement and judgment for such period of time and under
such circumstances as the court determines. Provided, however, that no
modification or annulment shall reduce or annul any arrears of child
support which have accrued prior to the date of application to annul or
modify any prior order or judgment as to child support. The court shall
not reduce or annul any arrears of maintenance which have been reduced
to final judgment pursuant to section two hundred forty-four of this
chapter. No other arrears of maintenance which have accrued prior to the
making of such application shall be subject to modification or annulment
unless the defaulting party shows good cause for failure to make
application for relief from the judgment or order directing such payment
prior to the accrual of such arrears and the facts and circumstances
constituting good cause are set forth in a written memorandum of
decision. Such modification may increase maintenance or child support
nunc pro tunc as of the date of application based on newly discovered
evidence. Any retroactive amount of maintenance, or child support due
shall, except as provided for herein, be paid in one sum or periodic
sums, as the court directs, taking into account any temporary or partial
payments which have been made. Any retroactive amount of child support
due shall be support arrears/past due support. In addition, such
retroactive child support shall be enforceable in any manner provided by
law including, but not limited to, an execution for support enforcement
pursuant to subdivision (b) of section fifty-two hundred forty-one of
the civil practice law and rules. When a child receiving support is a
public assistance recipient, or the order of support is being enforced
or is to be enforced pursuant to section one hundred eleven-g of the
social services law, the court shall establish the amount of retroactive
child support and notify the parties that such amount shall be enforced
by the support collection unit pursuant to an execution for support
enforcement as provided for in subdivision (b) of section fifty-two
hundred forty-one of the civil practice law and rules, or in such
periodic payments as would have been authorized had such an execution
been issued. In such case, the court shall not direct the schedule of
repayment of retroactive support. The provisions of this subdivision
shall not apply to a separation agreement made prior to the effective
date of this part.
c. Notwithstanding any other provision of law, any written application
or motion to the court for the modification or enforcement of a child
support or combined maintenance and child support order for persons not
in receipt of family assistance must contain either a request for child
support enforcement services which would authorize the collection of the
support obligation by the immediate issuance of an income execution for
support enforcement as provided for by this chapter, completed in the
manner specified in section one hundred eleven-g of the social services
law; or a statement that the applicant has applied for or is in receipt
of such services; or a statement that the applicant knows of the
availability of such services, has declined them at this time and where
support enforcement services pursuant to section one hundred eleven-g of
the social services law have been declined that the applicant
understands that an income deduction order may be issued pursuant to
subdivision (c) of section five thousand two hundred forty-two of the
civil practice law and rules without other child support enforcement
services and that payment of an administrative fee may be required. The
court shall provide a copy of any such request for child support
enforcement services to the support collection unit of the appropriate
social services district any time it directs payments to be made to such
support collection unit. Additionally, the copy of such request shall be
accompanied by the name, address and social security number of the
parties; the date and place of the parties` marriage; the name and date
of birth of the child or children; and the name and address of the
employers and income payors of the party ordered to pay child support to
the other party. Unless the party receiving child support or combined
maintenance and child support has applied for or is receiving such
services, the court shall not direct such payments to be made to the
support collection unit, as established in section one hundred eleven-h
of the social services law.
d. The court shall direct that a copy of any child support or combined
child and spousal support order issued by the court on or after the
first day of October, nineteen hundred ninety-eight, in any proceeding
under this section be provided promptly to the state case registry
established pursuant to subdivision four-a of section one hundred
eleven-b of the social services law.
S 237. Counsel fees and expenses. (a) In any action or proceeding
brought (1) to annul a marriage or to declare the nullity of a void
marriage, or (2) for a separation, or (3) for a divorce, or (4) to
declare the validity or nullity of a judgment of divorce rendered
against a spouse who was the defendant in any action outside the State
of New York and did not appear therein where such spouse asserts the
nullity of such foreign judgment, or (5) to enjoin the prosecution in
any other jurisdiction of an action for a divorce, the court may direct
either spouse or, where an action for annulment is maintained after the
death of a spouse, may direct the person or persons maintaining the
action, to pay such sum or sums of money directly to the attorney of
the other spouse to enable that spouse to carry on or defend the action
or proceeding as, in the court`s discretion, justice requires, having
regard to the circumstances of the case and of the respective parties.
Such direction must be made in the final judgment in such action or
proceeding, or by one or more orders from time to time before final
judgment, or by both such order or orders and the final judgment;
provided, however, such direction shall be made prior to final judgment
where it is shown that such order is required to enable the petitioning
party to properly proceed. Any applications for counsel fees and
expenses may be maintained by the attorney for either spouse in his own
name in the same proceeding.
(b) Upon any application to annul or modify an order or judgment for
alimony or for custody, visitation, or maintenance of a child, made as
in section two hundred thirty-six or section two hundred forty provided,
or upon any application by writ of habeas corpus or by petition and
order to show cause concerning custody, visitation or maintenance of a
child, the court may direct a spouse or parent to pay such sum or sums
of money for the prosecution or the defense of the application or
proceeding by the other spouse or parent as, in the court`s discretion,
justice requires, having regard to the circumstances of the case and of
the respective parties. With respect to any such application or
proceeding, such direction may be made in the order or judgment by which
the particular application or proceeding is finally determined, or by
one or more orders from time to time before the final order or judgment,
or by both such order or orders and the final order or judgment. Any
applications for counsel fees and expenses may be maintained by the
attorney for either spouse in counsel`s own name in the same proceeding.
Representation by an attorney pursuant to paragraph (b) of subdivision
nine of section one hundred eleven-b of the social services law shall
not preclude an award of counsel fees to an applicant which would
otherwise be allowed under this section.
(c) In any action or proceeding for failure to obey any lawful order
compelling payment of support or maintenance, or distributive award the
court shall, upon a finding that such failure was willful, order
respondent to pay counsel fees to the attorney representing the
petitioner.
(d) The term "expenses" as used in subdivisions (a) and (b) of this
section shall include, but shall not be limited to, accountant fees,
appraisal fees, actuarial fees, investigative fees and other fees and
expenses that the court may determine to be necessary to enable a spouse
to carry on or defend an action or proceeding under this section. In
determining the appropriateness and necessity of fees, the court shall
consider:
1. The nature of the marital property involved;
2. The difficulties involved, if any, in identifying and evaluating
the marital property;
3. The services rendered and an estimate of the time involved; and
4. The applicant`s financial status.
S 238. Expenses in enforcement proceedings. In any action or
proceeding to compel the payment of any sum of money required to be paid
by a judgment or order entered in an action for divorce, separation,
annulment or declaration of nullity of a void marriage, or in any
proceeding pursuant to section two hundred forty-three, two hundred
forty-four, two hundred forty-five, or two hundred forty-six, the court
may in its discretion require either party to pay the expenses of the
other in bringing, carrying on, or defending such action or proceeding.
In any such action or proceeding, applications for counsel fees and
expenses may be maintained by the attorney for the respective parties in
counsel`s own name and in counsel`s own behalf.
S 239. Stay in divorce or separation action on default of payment. In
an action for divorce or separation the court or the judge thereof may
refuse to grant an order to stay proceedings, where the only default is
the failure of a spouse to pay alimony, maintenance or counsel fees due
to his or her inability to make such payments. In no event shall a
spouse who has been imprisoned for contempt of court for failure to pay
alimony, maintenance or counsel fees or by virtue of an order of arrest
as a provisional remedy under the civil practice law and rules be stayed
from proceeding with the prosecution or defense of an action where the
only default is the failure of such spouse to pay alimony, maintenance
or counsel fees.
S 240. Custody and child support; orders of protection. 1. (a) In any
action or proceeding brought (1) to annul a marriage or to declare the
nullity of a void marriage, or (2) for a separation, or (3) for a
divorce, or (4) to obtain, by a writ of habeas corpus or by petition and
order to show cause, the custody of or right to visitation with any
child of a marriage, the court shall require verification of the status
of any child of the marriage with respect to such child`s custody and
support, including any prior orders, and shall enter orders for custody
and support as, in the court`s discretion, justice requires, having
regard to the circumstances of the case and of the respective parties
and to the best interests of the child and subject to the provisions of
subdivision one-c of this section. Where either party to an action
concerning custody of or a right to visitation with a child alleges in a
sworn petition or complaint or sworn answer, cross-petition,
counterclaim or other sworn responsive pleading that the other party has
committed an act of domestic violence against the party making the
allegation or a family or household member of either party, as such
family or household member is defined in article eight of the family
court act, and such allegations are proven by a preponderance of the
evidence, the court must consider the effect of such domestic violence
upon the best interests of the child, together with such other facts and
circumstances as the court deems relevant in making a direction pursuant
to this section. An order directing the payment of child support shall
contain the social security numbers of the named parties. In all cases
there shall be no prima facie right to the custody of the child in
either parent. Such direction shall make provision for child support out
of the property of either or both parents. The court shall make its
award for child support pursuant to subdivision one-b of this section.
Such direction may provide for reasonable visitation rights to the
maternal and/or paternal grandparents of any child of the parties. Such
direction as it applies to rights of visitation with a child remanded or
placed in the care of a person, official, agency or institution pursuant
to article ten of the family court act, or pursuant to an instrument
approved under section three hundred fifty-eight-a of the social
services law, shall be enforceable pursuant to part eight of article ten
of the family court act and sections three hundred fifty-eight-a and
three hundred eighty-four-a of the social services law and other
applicable provisions of law against any person having care and custody,
or temporary care and custody, of the child. Notwithstanding any other
provision of law, any written application or motion to the court for the
establishment, modification or enforcement of a child support obligation
for persons not in receipt of public assistance and care must contain
either a request for child support enforcement services which would
authorize the collection of the support obligation by the immediate
issuance of an income execution for support enforcement as provided for
by this chapter, completed in the manner specified in section one
hundred eleven-g of the social services law; or a statement that the
applicant has applied for or is in receipt of such services; or a
statement that the applicant knows of the availability of such services,
has declined them at this time and where support enforcement services
pursuant to section one hundred eleven-g of the social services law have
been declined that the applicant understands that an income deduction
order may be issued pursuant to subdivision (c) of section fifty-two
hundred forty-two of the civil practice law and rules without other
child support enforcement services and that payment of an administrative
fee may be required. The court shall provide a copy of any such request
for child support enforcement services to the support collection unit of
the appropriate social services district any time it directs payments to
be made to such support collection unit. Additionally, the copy of any
such request shall be accompanied by the name, address and social
security number of the parties; the date and place of the parties`
marriage; the name and date of birth of the child or children; and the
name and address of the employers and income payors of the party from
whom child support is sought or from the party ordered to pay child
support to the other party. Such direction may require the payment of a
sum or sums of money either directly to the custodial parent or to third
persons for goods or services furnished for such child, or for both
payments to the custodial parent and to such third persons; provided,
however, that unless the party seeking or receiving child support has
applied for or is receiving such services, the court shall not direct
such payments to be made to the support collection unit, as established
in section one hundred eleven-h of the social services law. Every order
directing the payment of support shall require that if either parent
currently, or at any time in the future, has health insurance benefits
available that may be extended or obtained to cover the child, such
parent is required to exercise the option of additional coverage in
favor of such child and execute and deliver to such person any forms,
notices, documents or instruments necessary to assure timely payment of
any health insurance claims for such child.
(b) As used in this section, the following terms shall have the
following meanings:
(1) "Health insurance benefits" means any medical, dental, optical and
prescription drugs and health care services or other health care
benefits that may be provided for a dependent through an employer or
organization, including such employers or organizations which are self
insured, or through other available health insurance or health care
coverage plans.
(2) "Available health insurance benefits" means any health insurance
benefits that are reasonable in cost and that are reasonably accessible
to the person on whose behalf the petition is brought. Health insurance
benefits that are not reasonable in cost or whose services are not
reasonably accessible to such person, shall be considered unavailable.
(c) When the person on whose behalf the petition is brought is a
child, the court shall consider the availability of health insurance
benefits to all parties and shall take the following action to ensure
that health insurance benefits are provided for the benefit of the
child:
(1) Where the child is presently covered by health insurance benefits,
the court shall direct in the order of support that such coverage be
maintained, unless either parent requests the court to make a direction
for health insurance benefits coverage pursuant to paragraph two of this
subdivision.
(2) Where the child is not presently covered by health insurance
benefits, the court shall make a determination as follows:
(i) If only one parent has available health insurance benefits, the
court shall direct in the order of support that such parent provide
health insurance benefits.
(ii) If both parents have available health insurance benefits the
court shall direct in the order of support that either parent or both
parents provide such health insurance. The court shall make such
determination based on the circumstances of the case, including, but not
limited to, the cost and comprehensiveness of the respective health
insurance benefits and the best interests of the child.
(iii) If neither parent has available health insurance benefits, the
court shall direct in the order of support that the custodial parent
apply for the state`s child health insurance plan pursuant to title
one-A of article twenty-five of the public health law and the medical
assistance program established pursuant to title eleven of article five
of the social services law. If eligible for such coverage, the court
shall prorate the cost of any premium or family contribution in
accordance with paragraph (d) of this subdivision. A direction issued
under this subdivision shall not limit or alter either parent`s
obligation to obtain health insurance benefits at such time as they
become available, as required pursuant to paragraph (a) of this
subdivision.
(d) The cost of providing health insurance benefits pursuant to
paragraph (c) of this subdivision shall be prorated between the parties
in the same proportion as each parent`s income is to the combined
parental income. If the custodial parent is ordered to provide such
benefits, the non-custodial parent`s pro rata share of such costs shall
be added to the basic support obligation. If the non-custodial parent is
ordered to provide such benefits, the custodial parent`s pro rata share
of such costs shall be deducted from the basic support obligation. Where
the court finds that such proration is unjust or inappropriate, the
court shall:
(1) order the parties to pay such amount of the cost of health
insurance benefits as the court finds just and appropriate;
(2) add or subtract such amount in the manner set forth in this
subdivision; and
(3) set forth in the order the factors it considered, the amount of
each party`s share of the cost and the reason or reasons the court did
not order such pro rata apportionment.
(e) The court shall provide in the order of support that the legally
responsible relative immediately notify the other party, or the other
party and the support collection unit when the order is issued on behalf
of a child in receipt of public assistance and care or in receipt of
services pursuant to section one hundred eleven-g of the social services
law, of any change in health insurance benefits, including any
termination of benefits, change in the health insurance benefit carrier,
premium, or extent and availability of existing or new benefits.
(f) Where the court determines that health insurance benefits are
available, the court shall provide in the order of support that the
legally responsible relative immediately enroll the eligible dependents
named in the order who are otherwise eligible for such benefits without
regard to any seasonal enrollment restrictions. Such order shall further
direct the legally responsible relative to maintain such benefits as
long as they remain available to such relative. Such order shall further
direct the legally responsible relative to assign all insurance
reimbursement payments for health care expenses incurred for his or her
eligible dependents to the provider of such services or the party
actually having incurred and satisfied such expenses, as appropriate.
(g) When the court issues an order of child support or combined child
and spousal support on behalf of persons in receipt of public assistance
and care or in receipt of services pursuant to section one hundred
eleven-g of the social services law, such order shall further direct
that the provision of health care benefits shall be immediately enforced
pursuant to section fifty-two hundred forty-one of the civil practice
law and rules.
(h) When the court issues an order of child support or combined child
and spousal support on behalf of persons other than those in receipt of
public assistance and care or in receipt of services pursuant to section
one hundred eleven-g of the social services law, the court shall also
issue a separate order which shall include the necessary direction to
ensure the order`s characterization as a qualified medical child support
order as defined by section six hundred nine of the employee retirement
income security act of 1974 (29 USC 1169). Such order shall: (i) clearly
state that it creates or recognizes the existence of the right of the
named dependent to be enrolled and to receive benefits for which the
legally responsible relative is eligible under the available group
health plans, and shall clearly specify the name, social security number
and mailing address of the legally responsible relative, and of each
dependent to be covered by the order; (ii) provide a clear description
of the type of coverage to be provided by the group health plan to each
such dependent or the manner in which the type of coverage is to be
determined; and (iii) specify the period of time to which the order
applies. The court shall not require the group health plan to provide
any type or form of benefit or option not otherwise provided under the
group health plan except to the extent necessary to meet the
requirements of a law relating to medical child support described in
section one thousand three hundred and ninety-six g of title forty-two
of the United States code.
(i) Upon a finding that a legally responsible relative wilfully failed
to obtain health insurance benefits in violation of a court order, such
relative will be presumptively liable for all health care expenses
incurred on behalf of such dependents from the first date such
dependents were eligible to be enrolled to receive health insurance
benefits after the issuance of the order of support directing the
acquisition of such coverage.
(j) The order shall be effective as of the date of the application
therefor, and any retroactive amount of child support due shall be
support arrears/past due support and shall, except as provided for
herein, be paid in one lump sum or periodic sums, as the court shall
direct, taking into account any amount of temporary support which has
been paid. In addition, such retroactive child support shall be
enforceable in any manner provided by law including, but not limited to,
an execution for support enforcement pursuant to subdivision (b) of
section fifty-two hundred forty-one of the civil practice law and rules.
When a child receiving support is a public assistance recipient, or the
order of support is being enforced or is to be enforced pursuant to
section one hundred eleven-g of the social services law, the court shall
establish the amount of retroactive child support and notify the parties
that such amount shall be enforced by the support collection unit
pursuant to an execution for support enforcement as provided for in
subdivision (b) of section fifty-two hundred forty-one of the civil
practice law and rules, or in such periodic payments as would have been
authorized had such an execution been issued. In such case, the courts
shall not direct the schedule of repayment of retroactive support. Where
such direction is for child support and paternity has been established
by a voluntary acknowledgement of paternity as defined in section
forty-one hundred thirty-five-b of the public health law, the court
shall inquire of the parties whether the acknowledgement has been duly
filed, and unless satisfied that it has been so filed shall require the
clerk of the court to file such acknowledgement with the appropriate
registrar within five business days. Such direction may be made in the
final judgment in such action or proceeding, or by one or more orders
from time to time before or subsequent to final judgment, or by both
such order or orders and the final judgment. Such direction may be made
notwithstanding that the court for any reason whatsoever, other than
lack of jurisdiction, refuses to grant the relief requested in the
action or proceeding. Any order or judgment made as in this section
provided may combine in one lump sum any amount payable to the custodial
parent under this section with any amount payable to such parent under
section two hundred thirty-six of this article. Upon the application of
either parent, or of any other person or party having the care, custody
and control of such child pursuant to such judgment or order, after such
notice to the other party, parties or persons having such care, custody
and control and given in such manner as the court shall direct, the
court may annul or modify any such direction, whether made by order or
final judgment, or in case no such direction shall have been made in the
final judgment may, with respect to any judgment of annulment or
declaring the nullity of a void marriage rendered on or after September
first, nineteen hundred forty, or any judgment of separation or divorce
whenever rendered, amend the judgment by inserting such direction.
Subject to the provisions of section two hundred forty-four of this
article, no such modification or annulment shall reduce or annul arrears
accrued prior to the making of such application unless the defaulting
party shows good cause for failure to make application for relief from
the judgment or order directing such payment prior to the accrual of
such arrears. Such modification may increase such child support nunc pro
tunc as of the date of application based on newly discovered evidence.
Any retroactive amount of child support due shall be support
arrears/past due support and shall be paid in one lump sum or periodic
sums, as the court shall direct, taking into account any amount of
temporary child support which has been paid. In addition, such
retroactive child support shall be enforceable in any manner provided by
law including, but not limited to, an execution for support enforcement
pursuant to subdivision (b) of section fifty-two hundred forty-one of
the civil practice law and rules.
1-a. In any proceeding brought pursuant to this section to determine
the custody or visitation of minors, a report made to the statewide
central register of child abuse and maltreatment, pursuant to title six
of article six of the social services law, or a portion thereof, which
is otherwise admissible as a business record pursuant to rule forty-five
hundred eighteen of the civil practice law and rules shall not be
admissible in evidence, notwithstanding such rule, unless an
investigation of such report conducted pursuant to title six of article
six of the social services law has determined that there is some
credible evidence of the alleged abuse or maltreatment and that the
subject of the report has been notified that the report is indicated. In
addition, if such report has been reviewed by the state commissioner of
social services or his designee and has been determined to be unfounded,
it shall not be admissible in evidence. If such report has been so
reviewed and has been amended to delete any finding, each such deleted
finding shall not be admissible. If the state commissioner of social
services or his designee has amended the report to add any new finding,
each such new finding, together with any portion of the original report
not deleted by the commissioner or his designee, shall be admissible if
it meets the other requirements of this subdivision and is otherwise
admissible as a business record. If such a report, or portion thereof,
is admissible in evidence but is uncorroborated, it shall not be
sufficient to make a fact finding of abuse or maltreatment in such
proceeding. Any other evidence tending to support the reliability of
such report shall be sufficient corroboration.
1-b. (a) The court shall make its award for child support pursuant to
the provisions of this subdivision. The court may vary from the amount
of the basic child support obligation determined pursuant to paragraph
(c) of this subdivision only in accordance with paragraph (f) of this
subdivision.
(b) For purposes of this subdivision, the following definitions shall
be used:
(1) "Basic child support obligation" shall mean the sum derived by
adding the amounts determined by the application of subparagraphs two
and three of paragraph (c) of this subdivision except as increased
pursuant to subparagraphs four, five, six and seven of such paragraph.
(2) "Child support" shall mean a sum to be paid pursuant to court
order or decree by either or both parents or pursuant to a valid
agreement between the parties for care, maintenance and education of any
unemancipated child under the age of twenty-one years.
(3) "Child support percentage" shall mean:
(i) seventeen percent of the combined parental income for one child;
(ii) twenty-five percent of the combined parental income for two
children;
(iii) twenty-nine percent of the combined parental income for three
children;
(iv) thirty-one percent of the combined parental income for four
children; and
(v) no less than thirty-five percent of the combined parental income
for five or more children.
(4) "Combined parental income" shall mean the sum of the income of
both parents.
(5) "Income" shall mean, but shall not be limited to, the sum of the
amounts determined by the application of clauses (i), (ii), (iii), (iv),
(v) and (vi) of this subparagraph reduced by the amount determined by
the application of clause (vii) of this subparagraph:
(i) gross (total) income as should have been or should be reported in
the most recent federal income tax return. If an individual files
his/her federal income tax return as a married person filing jointly,
such person shall be required to prepare a form, sworn to under penalty
of law, disclosing his/her gross income individually;
(ii) to the extent not already included in gross income in clause (i)
of this subparagraph, investment income reduced by sums expended in
connection with such investment;
(iii) to the extent not already included in gross income in clauses
(i) and (ii) of this subparagraph, the amount of income or compensation
voluntarily deferred and income received, if any, from the following
sources:
(A) workers` compensation,
(B) disability benefits,
(C) unemployment insurance benefits,
(D) social security benefits,
(E) veterans benefits,
(F) pensions and retirement benefits,
(G) fellowships and stipends, and
(H) annuity payments;
(iv) at the discretion of the court, the court may attribute or impute
income from, such other resources as may be available to the parent,
including, but not limited to:
(A) non-income producing assets,
(B) meals, lodging, memberships, automobiles or other perquisites that
are provided as part of compensation for employment to the extent that
such perquisites constitute expenditures for personal use, or which
expenditures directly or indirecly confer personal economic benefits,
(C) fringe benefits provided as part of compensation for employment,
and
(D) money, goods, or services provided by relatives and friends;
(v) an amount imputed as income based upon the parent`s former
resources or income, if the court determines that a parent has reduced
resources or income in order to reduce or avoid the parent`s obligation
for child support;
(vi) to the extent not already included in gross income in clauses (i)
and (ii) of this subparagraph, the following self-employment deductions
attributable to self-employment carried on by the taxpayer:
(A) any depreciation deduction greater than depreciation calculated on
a straight-line basis for the purpose of determining business income or
investment credits, and
(B) entertainment and travel allowances deducted from business income
to the extent said allowances reduce personal expenditures;
(vii) the following shall be deducted from income prior to applying
the provisions of paragraph (c) of this subdivision:
(A) unreimbursed employee business expenses except to the extent said
expenses reduce personal expenditures,
(B) alimony or maintenance actually paid to a spouse not a party to
the instant action pursuant to court order or validly executed written
agreement,
(C) alimony or maintenance actually paid or to be paid to a spouse
that is a party to the instant action pursuant to an existing court
order or contained in the order to be entered by the court, or pursuant
to a validly executed written agreement, provided the order or agreement
provides for a specific adjustment, in accordance with this subdivision,
in the amount of child support payable upon the termination of alimony
or maintenance to such spouse,
(D) child support actually paid pursuant to court order or written
agreement on behalf of any child for whom the parent has a legal duty of
support and who is not subject to the instant action,
(E) public assistance,
(F) supplemental security income,
(G) New York city or Yonkers income or earnings taxes actually paid,
and
(H) federal insurance contributions act (FICA) taxes actually paid.
(6) "Self-support reserve" shall mean one hundred thirty-five percent
of the poverty income guidelines amount for a single person as reported
by the federal department of health and human services. For the calendar
year nineteen hundred eighty-nine, the self-support reserve shall be
eight thousand sixty-five dollars. On March first of each year, the
self-support reserve shall be revised to reflect the annual updating of
the poverty income guidelines as reported by the federal department of
health and human services for a single person household.
(c) The amount of the basic child support obligation shall be
determined in accordance with the provision of this paragraph:
(1) The court shall determine the combined parental income.
(2) The court shall multiply the combined parental income up to eighty
thousand dollars by the appropriate child support percentage and such
amount shall be prorated in the same proportion as each parent`s income
is to the combined parental income.
(3) Where the combined parental income exceeds the dollar amount set
forth in subparagraph two of this paragraph, the court shall determine
the amount of child support for the amount of the combined parental
income in excess of such dollar amount through consideration of the
factors set forth in paragraph (f) of this subdivision and/or the child
support percentage.
(4) Where the custodial parent is working, or receiving elementary or
secondary education, or higher education or vocational training which
the court determines will lead to employment, and incurs child care
expenses as a result thereof, the court shall determine reasonable child
care expenses and such child care expenses, where incurred, shall be
prorated in the same proportion as each parent`s income is to the
combined parental income. Each parent`s pro rata share of the child care
expenses shall be separately stated and added to the sum of
subparagraphs two and three of this paragraph.
(5) The court shall prorate each parent`s share of future reasonable
health care expenses of the child not covered by insurance in the same
proportion as each parent`s income is to the combined parental income.
The non-custodial parent`s pro rata share of such health care expenses
shall be paid in a manner determined by the court, including direct
payment to the health care provider.
(6) Where the court determines that the custodial parent is seeking
work and incurs child care expenses as a result thereof, the court may
determine reasonable child care expenses and may apportion the same
between the custodial and non-custodial parent. The non-custodial
parent`s share of such expenses shall be separately stated and paid in a
manner determined by the court.
(7) Where the court determines, having regard for the circumstances of
the case and of the respective parties and in the best interests of the
child, and as justice requires, that the present or future provision of
post-secondary, private, special, or enriched education for the child is
appropriate, the court may award educational expenses. The non-custodial
parent shall pay educational expenses, as awarded, in a manner
determined by the court, including direct payment to the educational
provider.
(d) Notwithstanding the provisions of paragraph (c) of this
subdivision, where the annual amount of the basic child support
obligation would reduce the non-custodial parent`s income below the
poverty income guidelines amount for a single person as reported by the
federal department of health and human services, the basic child support
obligation shall be twenty-five dollars per month or the difference
between the non-custodial parent`s income and the self-support reserve,
whichever is greater. Notwithstanding the provisions of paragraph (c) of
this subdivision, where the annual amount of the basic child support
obligation would reduce the non-custodial parent`s income below the
self-support reserve but not below the poverty income guidelines amount
for a single person as reported by the federal department of health and
human services, the basic child support obligation shall be fifty
dollars per month or the difference between the non-custodial parent`s
income and the self-support reserve, whichever is greater.
(e) Where a parent is or may be entitled to receive non-recurring
payments from extraordinary sources not otherwise considered as income
pursuant to this section, including but not limited to:
(1) Life insurance policies;
(2) Discharges of indebtedness;
(3) Recovery of bad debts and delinquency amounts;
(4) Gifts and inheritances; and
(5) Lottery winnings,
the court, in accordance with paragraphs (c), (d) and (f) of this
subdivision may allocate a proportion of the same to child support, and
such amount shall be paid in a manner determined by the court.
(f) The court shall calculate the basic child support obligation, and
the non-custodial parent`s pro rata share of the basic child support
obligation. Unless the court finds that the non-custodial parents`s
pro-rata share of the basic child support obligation is unjust or
inappropriate, which finding shall be based upon consideration of the
following factors:
(1) The financial resources of the custodial and non-custodial parent,
and those of the child;
(2) The physical and emotional health of the child and his/her special
needs and aptitudes;
(3) The standard of living the child would have enjoyed had the
marriage or household not been dissolved;
(4) The tax consequences to the parties;
(5) The non-monetary contributions that the parents will make toward
the care and well-being of the child;
(6) The educational needs of either parent;
(7) A determination that the gross income of one parent is
substantially less than the other parent`s gross income;
(8) The needs of the children of the non-custodial parent for whom the
non-custodial parent is providing support who are not subject to the
instant action and whose support has not been deducted from income
pursuant to subclause (D) of clause (vii) of subparagraph five of
paragraph (b) of this subdivision, and the financial resources of any
person obligated to support such children, provided, however, that this
factor may apply only if the resources available to support such
children are less than the resources available to support the children
who are subject to the instant action;
(9) Provided that the child is not on public assistance (i)
extraordinary expenses incurred by the non-custodial parent in
exercising visitation, or (ii) expenses incurred by the non-custodial
parent in extended visitation provided that the custodial parent`s
expenses are substantially reduced as a result thereof; and
(10) Any other factors the court determines are relevant in each case,
the court shall order the non-custodial parent to pay his or her pro
rata share of the basic child support obligation, and may order the
non-custodial parent to pay an amount pursuant to paragraph (e) of this
subdivision.
(g) Where the court finds that the non-custodial parent`s pro rata
share of the basic child support obligation is unjust or inappropriate,
the court shall order the non-custodial parent to pay such amount of
child support as the court finds just and appropriate, and the court
shall set forth, in a written order, the factors it considered; the
amount of each party`s pro rata share of the basic child support
obligation; and the reasons that the court did not order the basic child
support obligation. Such written order may not be waived by either
party or counsel; provided, however, and notwithstanding any other
provision of law, the court shall not find that the non-custodial
parent`s pro rata share of such obligation is unjust or inappropriate on
the basis that such share exceeds the portion of a public assistance
grant which is attributable to a child or children. In no instance shall
the court order child support below twenty-five dollars per month. Where
the non-custodial parent`s income is less than or equal to the poverty
income guidelines amount for a single person as reported by the federal
department of health and human services, unpaid child support arrears in
excess of five hundred dollars shall not accrue.
(h) A validly executed agreement or stipulation voluntarily entered
into between the parties after the effective date of this subdivision
presented to the court for incorporation in an order or judgment shall
include a provision stating that the parties have been advised of the
provisions of this subdivision, and that the basic child support
obligation provided for therein would presumptively result in the
correct amount of child support to be awarded. In the event that such
agreement or stipulation deviates from the basic child support
obligation, the agreement or stipulation must specify the amount that
such basic child support obligation would have been and the reason or
reasons that such agreement or stipulation does not provide for payment
of that amount. Such provision may not be waived by either party or
counsel. Nothing contained in this subdivision shall be construed to
alter the rights of the parties to voluntarily enter into validly
executed agreements or stipulations which deviate from the basic child
support obligation provided such agreements or stipulations comply with
the provisions of this paragraph. The court shall, however, retain
discretion with respect to child support pursuant to this section. Any
court order or judgment incorporating a validly executed agreement or
stipulation which deviates from the basic child support obligation shall
set forth the court`s reasons for such deviation.
(i) Where either or both parties are unrepresented, the court shall
not enter an order or judgment other than a temporary order pursuant to
section two hundred thirty-seven of this article, that includes a
provision for child support unless the unrepresented party or parties
have received a copy of the child support standards chart promulgated by
the commissioner of social services pursuant to subdivision two of
section one hundred eleven-i of the social services law. Where either
party is in receipt of child support enforcement services through the
local social services district, the local social services district child
support enforcement unit shall advise such party of the amount derived
from application of the child support percentage and that such amount
serves as a starting point for the determination of the child support
award, and shall provide such party with a copy of the child support
standards chart. In no instance shall the court approve any voluntary
support agreement or compromise that includes an amount for child
support less than twenty-five dollars per month.
(j) In addition to financial disclosure required in section two
hundred thirty-six of this article, the court may require that the
income and/or expenses of either party be verified with documentation
including, but not limited to, past and present income tax returns,
employer statements, pay stubs, corporate, business, or partnership
books and records, corporate and business tax returns, and receipts for
expenses or such other means of verification as the court determines
appropriate. Nothing herein shall affect any party`s right to pursue
discovery pursuant to this chapter, the civil practice law and rules, or
the family court act.
(k) When a party has defaulted and/or the court is otherwise presented
with insufficient evidence to determine gross income, the court shall
order child support based upon the needs or standard of living of the
child, whichever is greater. Such order may be retroactively modified
upward, without a showing of change in circumstances.
(l) In any action or proceeding for modification of an order of child
support existing prior to the effective date of this paragraph, brought
pursuant to this article, the child support standards set forth in this
subdivision shall not constitute a change of circumstances warranting
modification of such support order; provided, however, that (1) where
the circumstances warrant modification of such order, or (2) where any
party objects to an adjusted child support order made or proposed at the
direction of the support collection unit pursuant to section one hundred
eleven-h or one hundred eleven-n of the social services law, and the
court is reviewing the current order of child support, such standards
shall be applied by the court in its determination with regard to the
request for modification, or disposition of an objection to an adjusted
child support order made or proposed by a support collection unit. In
applying such standards, when the order to be modified incorporates by
reference or merges with a validly executed separation agreement or
stipulation of settlement, the court may consider, in addition to the
factors set forth in paragraph (f) of this subdivision, the provisions
of such agreement or stipulation concerning property distribution,
distributive award and/or maintenance in determining whether the amount
calculated by using the standards would be unjust or inappropriate.
1-c. (a) Notwithstanding any other provision of this chapter to the
contrary, no court shall make an order providing for visitation or
custody to a person who has been convicted of murder in the first or
second degree in this state, or convicted of an offense in another
jurisdiction which, if committed in this state, would constitute either
murder in the first or second degree, of a parent, legal custodian,
legal guardian, sibling , half-sibling or step-sibling of any child who
is the subject of the proceeding. Pending determination of a petition
for visitation or custody, such child shall not visit and no person
shall visit with such child present, such person who has been convicted
of murder in the first or second degree in this state, or convicted of
and offense in another jurisdiction which, if committed in this state,
would constitute either murder in the first or second degree, of a
parent, legal custodian, legal guardian, sibling, half-sibling or
step-sibling of a child who is the subject of the proceeding without the
consent of such child`s custodian or legal guardian.
(b) Notwithstanding paragraph (a) of this subdivision a court may
order visitation or custody where:
(i) (A) such child is of suitable age to signify assent and such child
assents to such visitation or custody; or
(B) if such child is not of suitable age to signify assent, the
child`s custodian or legal guardian assents to such order; or
(C) the person who has been convicted of murder in the first or second
degree, or an offense in another jurisdiction which if committed in this
state, would constitute either murder in the first or second degree, can
prove by a preponderance of the evidence that:
(1) he or she, or a family or household member of either party, was a
victim of domestic violence by the victim of such murder; and
(2) the domestic violence was causally related to the commission of
such murder; and
(ii) the court finds that such visitation or custody is in the best
interests of the child.
(c) For the purpose of making a determination pursuant to clause (C)
of subparagraph (i) of paragraph (b) of this subdivision, the court
shall not be bound by the findings of fact, conclusions of law or
ultimate conclusion as determined by the proceedings leading to the
conviction of murder in the first or second degree in this state or of
an offense in another jurisdiction which, if committed in this state,
would constitute murder in either the first or second degree, of a
parent, legal guardian, legal custodian, sibling, half-sibling or
step-sibling of a child who is the subject of the proceeding. In all
proceedings under this section, a law guardian shall be appointed for
the child.
2. (a) An order directing payment of money for child support shall be
enforceable pursuant to section fifty-two hundred forty-one or fifty-two
hundred forty-two of the civil practice law and rules or in any other
manner provided by law. Such orders or judgments for child support and
maintenance shall also be enforceable pursuant to article fifty-two of
the civil practice law and rules upon a debtor`s default as such term is
defined in paragraph seven of subdivision (a) of section fifty-two
hundred forty-one of the civil practice law and rules. The establishment
of a default shall be subject to the procedures established for the
determination of a mistake of fact for income executions pursuant to
subdivision (e) of section fifty-two hundred forty-one of the civil
practice law and rules. For the purposes of enforcement of child support
orders or combined spousal and child support orders pursuant to section
five thousand two hundred forty-one of the civil practice law and rules,
a "default" shall be deemed to include amounts arising from retroactive
support.
b. (1) When a child receiving support is a public assistance
recipient, or the order of support is being enforced or is to be
enforced pursuant to section one hundred eleven-g of the social services
law, the court shall direct that the child support payments be made to
the support collection unit. Unless (i) the court finds and sets forth
in writing the reasons that there is good cause not to require immediate
income withholding; or (ii) when the child is not in receipt of public
assistance, a written agreement providing for an alternative arrangement
has been reached between the parties, the support collection unit shall
issue an income execution immediately for child support or combined
maintenance and child support, and may issue an execution for medical
support enforcement in accordance with the provisions of the order of
support. Such written agreement may include an oral stipulation made on
the record resulting in a written order. For purposes of this paragraph,
good cause shall mean substantial harm to the debtor. The absence of an
arrearage or the mere issuance of an income execution shall not
constitute good cause. When an immediate income execution or an
execution for medical support enforcement is issued by the support
collection unit, such income execution shall be issued pursuant to
section five thousand two hundred forty-one of the civil practice law
and rules, except that the provisions thereof relating to mistake of
fact, default and any other provisions which are not relevant to the
issuance of an income execution pursuant to this paragraph shall not
apply; provided, however, that if the support collection unit makes an
error in the issuance of an income execution pursuant to this paragraph,
and such error is to the detriment of the debtor, the support collection
unit shall have thirty days after notification by the debtor to correct
the error. Where permitted under federal law and where the record of the
proceedings contains such information, such order shall include on its
face the social security number and the name and address of the
employer, if any, of the person chargeable with support; provided,
however, that failure to comply with this requirement shall not
invalidate such order. When the court determines that there is good
cause not to immediately issue an income execution or when the parties
agree to an alternative arrangement as provided in this paragraph, the
court shall provide expressly in the order of support that the support
collection unit shall not issue an immediate income execution.
Notwithstanding any such order, the support collection unit shall issue
an income execution for support enforcement when the debtor defaults on
the support obligation, as defined in section five thousand two hundred
forty-one of the civil practice law and rules.
(2) When the court issues an order of child support or combined child
and spousal support on behalf of persons other than those in receipt of
public assistance or in receipt of services pursuant to section one
hundred eleven-g of the social services law, the court shall issue an
income deduction order pursuant to subdivision (c) of section five
thousand two hundred forty-two of the civil practice law and rules at
the same time it issues the order of support. The court shall enter the
income deduction order unless the court finds and sets forth in writing
(i) the reasons that there is good cause not to require immediate income
withholding; or (ii) that an agreement providing for an alternative
arrangement has been reached between the parties. Such agreement may
include a written agreement or an oral stipulation, made on the record,
that results in a written order. For purposes of this paragraph, good
cause shall mean substantial harm to the debtor. The absence of an
arrearage or the mere issuance of an income deduction order shall not
constitute good cause. Where permitted under federal law and where the
record of the proceedings contains such information, such order shall
include on its face the social security number and the name and address
of the employer, if any, of the person chargeable with support;
provided, however, that failure to comply with this requirement shall
not invalidate the order. When the court determines that there is good
cause not to issue an income deduction order immediately or when the
parties agree to an alternative arrangement as provided in this
paragraph, the court shall provide expressly in the order of support the
basis for its decision and shall not issue an income deduction order.
c. Any order of support issued on behalf of a child in receipt of
family assistance or child support enforcement services pursuant to
section one hundred eleven-g of the social services law shall be subject
to review and adjustment by the support collection unit pursuant to
section one hundred eleven-n of the social services law. Such review and
adjustment shall be in addition to any other activities undertaken by
the support collection unit relating to the establishment, modification,
and enforcement of support orders payable to such unit.
3. Order of protection. a. The court may make an order of protection
in assistance or as a condition of any other order made under this
section. The order of protection may set forth reasonable conditions of
behavior to be observed for a specified time by any party. Such an order
may require any party:
(1) to stay away from the home, school, business or place of
employment of the child, other parent or any other party, and to stay
away from any other specific location designated by the court;
(2) to permit a parent, or a person entitled to visitation by a court
order or a separation agreement, to visit the child at stated periods;
(3) to refrain from committing a family offense, as defined in
subdivision one of section 530.11 of the criminal procedure law, or any
criminal offense against the child or against the other parent or
against any person to whom custody of the child is awarded or from
harassing, intimidating or threatening such persons;
(4) to permit a designated party to enter the residence during a
specified period of time in order to remove personal belongings not in
issue in a proceeding or action under this chapter or the family court
act; or
(5) to refrain from acts of commission or omission that create an
unreasonable risk to the health, safety or welfare of a child.
(6) to pay the reasonable counsel fees and disbursements involved in
obtaining or enforcing the order of the person who is protected by such
order if such order is issued or enforced.
(7) to observe such other conditions as are necessary to further the
purposes of protection.
b. An order of protection entered pursuant to this subdivision shall
bear in a conspicuous manner, on the front page of said order, the
language "Order of protection issued pursuant to section two hundred
forty of the domestic relations law". The absence of such language shall
not affect the validity of such order. The presentation of a copy of
such an order to any peace officer acting pursuant to his or her special
duties, or police officer, shall constitute authority, for that officer
to arrest a person when that person has violated the terms of such an
order, and bring such person before the court and, otherwise, so far as
lies within the officer`s power, to aid in securing the protection such
order was intended to afford.
c. An order of protection entered pursuant to this subdivision may be
made in the final judgment in any matrimonial action or in a proceeding
to obtain custody of or visitation with any child under this section, or
by one or more orders from time to time before or subsequent to final
judgment, or by both such order or orders and the final judgment. The
order of protection may remain in effect after entry of a final
matrimonial judgment and during the minority of any child whose custody
or visitation is the subject of a provision of a final judgment or any
order. An order of protection may be entered notwithstanding that the
court for any reason whatsoever, other than lack of jurisdiction,
refuses to grant the relief requested in the action or proceeding.
d. The chief administrator of the courts shall promulgate appropriate
uniform temporary orders of protection and orders of protection forms,
applicable to proceedings under this article, to be used throughout the
state. Such forms shall be promulgated and developed in a manner to
ensure the compatibility of such forms with the statewide computerized
registry established pursuant to section two hundred twenty-one-a of the
executive law.
e. No order of protection may direct any party to observe conditions
of behavior unless: (i) the party requesting the order of protection has
served and filed an action, proceeding, counter-claim or written motion
and, (ii) the court has made a finding on the record that such party is
entitled to issuance of the order of protection which may result from a
judicial finding of fact, judicial acceptance of an admission by the
party against whom the order was issued or judicial finding that the
party against whom the order is issued has given knowing, intelligent
and voluntary consent to its issuance. The provisions of this
subdivision shall not preclude the court from issuing a temporary order
of protection upon the court`s own motion or where a motion for such
relief is made to the court, for good cause shown.
Any party moving for a temporary order of protection pursuant to this
subdivision during hours when the court is open shall be entitled to
file such motion or pleading containing such prayer for emergency relief
on the same day that such person first appears at such court, and a
hearing on the motion or portion of the pleading requesting such
emergency relief shall be held on the same day or the next day that the
court is in session following the filing of such motion or pleading.
Upon issuance of an order of protection or temporary order of
protection or upon a violation of such order, the court may make an
order in accordance with section eight hundred forty-two-a of the family
court act directing the surrender of firearms, revoking or suspending a
party`s firearms license, and/or directing that such party be ineligible
to receive a firearms license. Upon issuance of an order of protection
pursuant to this section or upon a finding of a violation thereof, the
court also may direct payment of restitution in an amount not to exceed
ten thousand dollars in accordance with subdivision (e) of section eight
hundred forty-one of such act; provided, however, that in no case shall
an order of restitution be issued where the court determines that the
party against whom the order would be issued has already compensated the
injured party or where such compensation is incorporated in a final
judgment or settlement of the action.
3-a. Service of order of protection. If a temporary order of
protection has been issued upon a default, unless the party requesting
the order states on the record that she or he will arrange for other
means for service or deliver the order to a peace or police officer
directly for service, the court shall immediately deliver a copy of the
temporary order of protection or order of protection to a peace officer,
acting pursuant to his or her special duties and designated by the
court, or to a police officer as defined in paragraph (b) or (d) of
subdivision thirty-four of section 1.20 of the criminal procedure law,
or, in the city of New York, to a designated representative of the
police department of the city of New York. Any peace or police officer
or designated person receiving a temporary order of protection or an
order of protection as provided hereunder shall serve or provide for the
service thereof together with any associated papers that may be served
simultaneously, at any address designated therewith, including the
summons and petition or complaint if not previously served. Service of
such temporary order of protection or order of protection and associated
papers shall, insofar as practicable, be achieved promptly. An officer
or designated person obliged to perform service pursuant to this
subdivision, and his or her employer, shall not be liable for damages
resulting from failure to achieve service where, having made a
reasonable effort, such officer or designated person is unable to locate
and serve the temporary order of protection or order of protection at
any address provided by the party requesting the order. A statement
subscribed by the officer or designated person, and affirmed by him or
her to be true under the penalties of perjury, stating the papers
served, the date, time, address or in the event there is no address,
place, and manner of service, the name and a brief physical description
of the party served, shall be proof of service of the summons, petition
and temporary order of protection or order of protection. When the
temporary order of protection or order of protection and other papers,
if any, have been served, such officer or designated person shall
provide the court with an affirmation, certificate or affidavit of
service and shall provide notification of the date and time of such
service to the statewide computer registry established pursuant to
section two hundred twenty-one-a of the executive law.
3-b. Emergency powers; local criminal court. If the court that issued
an order of protection or temporary order of protection under this
section or warrant in connection thereto is not in session when an
arrest is made for an alleged violation of the order or upon a warrant
issued in connection with such violation, the arrested person shall be
brought before a local criminal court in the county of arrest or in the
county in which such warrant is returnable pursuant to article one
hundred twenty of the criminal procedure law and arraigned by such
court. Such local criminal court shall order the commitment of the
arrested person to the custody of the sheriff, admit to, fix or accept
bail, or release the arrested person on his or her recognizance pending
appearance in the court that issued the order of protection, temporary
order of protection or warrant. In making such order, such local
criminal court shall consider the bail recommendation, if any, made by
the supreme or family court as indicated on the warrant or certificate
of warrant. Unless the petitioner or complainant requests otherwise, the
court, in addition to scheduling further criminal proceedings, if any,
regarding such alleged family offense or violation allegation, shall
make such matter returnable in the supreme or family court, as
applicable, on the next day such court is in session.
3-c. Orders of protection; filing and enforcement of out-of-state
orders. A valid order of protection or temporary order of protection
issued by a court of competent jurisdiction in another state,
territorial or tribal jurisdiction shall be accorded full faith and
credit and enforced as if it were issued by a court within the state for
as long as the order remains in effect in the issuing jurisdiction in
accordance with sections two thousand two hundred sixty-five and two
thousand two hundred sixty-six of title eighteen of the United States
Code.
a. An order issued by a court of competent jurisdiction in another
state, territorial or tribal jurisdiction shall be deemed valid if:
(1) the issuing court had personal jurisdiction over the parties and
over the subject matter under the law of the issuing jurisdiction;
(2) the person against whom the order was issued had reasonable notice
and an opportunity to be heard prior to issuance of the order; provided,
however, that if the order was a temporary order of protection issued in
the absence of such person, that notice had been given and that an
opportunity to be heard had been provided within a reasonable period of
time after the issuance of the order; and
(3) in the case of orders of protection or temporary orders of
protection issued against both a petitioner and respondent, the order or
portion thereof sought to be enforced was supported by: (i) a pleading
requesting such order, including, but not limited to, a petition,
cross-petition or counterclaim; and (ii) a judicial finding that the
requesting party is entitled to the issuance of the order, which may
result from a judicial finding of fact, judicial acceptance of an
admission by the party against whom the order was issued or judicial
finding that the party against whom the order was issued had give
knowing, intelligent and voluntary consent to its issuance.
b. Notwithstanding the provisions of article fifty-four of the civil
practice law and rules, an order of protection or temporary order of
protection issued by a court of competent jurisdiction in another state,
territorial or tribal jurisdiction, accompanied by a sworn affidavit
that upon information and belief such order is in effect as written and
has not been vacated or modified, may be filed without fee with the
clerk of the court, who shall transmit information regarding such order
to the statewide registry of orders of protection and warrants
established pursuant to section two hundred twenty-one-a of the
executive law; provided, however, that such filing and registry entry
shall not be required for enforcement of the order.
4. One-time adjustment of child support orders issued prior to
September fifteenth, nineteen hundred eighty-nine. Any party to a child
support order issued prior to September fifteenth, nineteen hundred
eighty-nine on the behalf of a child in receipt of public assistance or
child support services pursuant to section one hundred eleven-g of the
social services law may request that the support collection unit
undertake one review of the order for adjustment purposes pursuant to
section one hundred eleven-h of the social services law. A hearing on
the adjustment of such order shall be granted upon the objection of
either party pursuant to the provisions of this section. An order shall
be adjusted if as of the date of the support collection unit`s review of
the correct amount of child support as calculated pursuant to the
provisions of this section would deviate by at least ten percent from
the child support ordered in the current order of support. Additionally,
a new order shall be issued upon a showing that the current order of
support does not provide for the health care needs of the child through
insurance or otherwise. Eligibility of the child for medical assistance
shall not relieve any obligation the parties otherwise have to provide
for the health care needs of the child. The support collection unit`s
review of a child support order shall be made on notice to all parties
to the current support order. Nothing herein shall be deemed in any way
to limit, restrict, expand or impair the rights of any party to file for
a modification of a child support order as is otherwise provided by law.
(1) Upon mailing of an adjustment finding and where appropriate a
proposed order in conformity with such finding filed by either party or
by the support collection unit, a party shall have thirty-five days from
the date of mailing to submit to the court identified thereon specific
written objections to such finding and proposed order.
(a) If specific written objections are submitted by either party or by
the support collection unit, a hearing shall be scheduled by the court
on notice to the parties and the support collection unit, who then shall
have the right to be heard by the court and to offer evidence in support
of or in opposition to adjustment of the support order.
(b) The party filing the specific written objections shall bear the
burden of going forward and the burden of proof; provided, however, that
if the support collection unit has failed to provide the documentation
and information required by subdivision fourteen of section one hundred
eleven-h of the social services law, the court shall first require the
support collection unit to furnish such documents and information to the
parties and the court.
(c) If the court finds by a preponderance of the evidence that the
specific written objections have been proven, the court shall
recalculate or readjust the proposed adjusted order accordingly or, for
good cause, shall remand the order to the support collection unit for
submission of a new proposed adjusted order. Any readjusted order so
issued by the court or resubmitted by the support collection unit after
a remand by the court shall be effective as of the date the proposed
adjusted order would have been effective had no specific written
objections been filed.
(d) If the court finds that the specific written objections have not
been proven by a preponderance of the evidence, the court shall
immediately issue the adjusted order as submitted by the support
collection unit, which shall be effective as of the date the order would
have been effective had no specific written exceptions been filed.
(e) If the court receives no specific written objections to the
support order within thirty-five days of the mailing of the proposed
order the clerk of the court shall immediately enter the order without
further review, modification, or other prior action by the court or any
judge or hearing examiner thereof, and the clerk shall immediately
transmit copies of the order of support to the parties and to the
support collection unit.
(2) A motion to vacate an order of support adjusted pursuant to this
section may be made no later than forty-five days after an adjusted
support order is executed by the court where no specific written
objections to the proposed order have been timely received by the court.
Such motion shall be granted only upon a determination by the court
issuing such order that personal jurisdiction was not timely obtained
over the moving party.
* 5. Provision of child support orders to the state case registry. The
court shall direct that a copy of any child support or combined child
and spousal support order issued by the court on or after the first day
of October, nineteen hundred ninety-eight, in any proceeding under this
section be provided promptly to the state case registry established
pursuant to subdivision four-a of section one hundred eleven-b of the
social services law.
* NB There are 2 subdivision 5`s
* 5. On-going cost of living adjustment of child support orders issued
prior to September fifteenth, nineteen hundred eighty-nine. Any party to
a child support order issued prior to September fifteenth, nineteen
hundred eighty-nine on the behalf of a child in receipt of public
assistance or child support services pursuant to section one hundred
eleven-g of the social services law may request that the support
collection unit review the order for a cost of living adjustment in
accordance with the provisions of section two hundred forty-c of this
article.
* NB There are 2 subdivision 5`s
S 240-a. Judgment or decree; additional provision. In any action or
proceeding brought under the provisions of this chapter wherein all or
part of the relief granted is divorce or annulment of a marriage any
interlocutory or final judgment or decree shall contain, as a part
thereof, the social security numbers of the named parties in the action
or proceeding, as well as a provision that each party may resume the use
of his or her premarriage surname or any other former surname.
S 240-b. Order of support by parent. When the court makes an order of
support pursuant to section two hundred forty of this article, and where
permitted under federal law and where the record of the proceedings
contains such information, the court shall require the social security
number of such parent to be affixed to such order; provided, however,
that no such order shall be invalid because of the omission of such
number. Where the record of the proceedings contains such information,
such order shall also include on its face the name and address of the
employer, if any, of the person chargeable with support provided,
however, that failure to comply with this requirement shall not
invalidate such order. Where the order of child support or combined
child and spouse support is made on behalf of persons in receipt of
public assistance or in receipt of services pursuant to section one
hundred eleven-g of the social services law, the court shall require
each party to provide, and update upon any change, the following
information to the court by reporting such change to the support
collection unit designated by the appropriate social services district:
social security number, residential and mailing addresses, telephone
number, driver`s license number; and name, address and telephone number
of the parties` employers. Due process requirements for notice and
service of process for subsequent hearings are met, with respect to such
party, upon sending written notice by first class mail to the most
recent residential address on record with the support collection unit;
or by sending by first class mail written notice to the most recent
employer address on record with the support collection unit, if a true
copy thereof also is sent by first class mail to the most recent
residential address on record with the support collection unit. Any such
order issued on or after the first day of October, nineteen hundred
ninety-nine shall also include, where available, the social security
number of each child on whose behalf support has been ordered.
S 240-c. Review and cost of living adjustment of child support orders.
1. Request. Any party to a child support order issued on behalf of a
child in receipt of public assistance, or child support enforcement
services pursuant to section one hundred eleven-g of the social services
law may request that the support collection unit review the order for
cost of living adjustment purposes pursuant to section one hundred
eleven-n of the social services law.
2. Adjustment process. (a) A cost of living adjustment shall be made
by the support collection unit with respect to an order of support under
review if the sum of the annual average changes of the consumer price
index for all urban consumers (CPI-U), as published annually by the
United States department of labor bureau of labor statistics, is ten
percent or greater.
(b) The cost of living adjustment and adjusted child support
obligation amount as calculated by the review shall be reflected on the
adjusted order issued by the support collection unit and mailed to the
parties by first class mail. The child support obligation amount
contained in the adjusted order shall be due and owing on the date the
first payment is due under the terms of the order of support which was
reviewed and adjusted occurring on or after the effective date of the
adjusted order.
(c) The support collection unit shall provide a copy of the adjusted
order to the court which issued the most recent order of support, which
shall append it to the order.
3. Objection process. (a) An objection to a cost of living adjustment,
as reflected in an adjusted order issued by a support collection unit,
may be made to the court by either party to the order, or by the support
collection unit, and shall be submitted to the court in writing within
thirty-five days from the date of mailing of the adjusted order. A copy
of the written objection shall be provided by the objecting party to the
other party and to the support collection unit.
(b) Where such obj 